it to be held then. It must also say what was the purpose of the election; that is, whether for president, for governor, or the like.2 An averment that "there was an election held in the state of Tennessee for president and vice-president of the United States of America" was adjudged to be sufficient, though, in exact language, it was for electors of president and vice-president; for, said Caruthers, J., "it is in substance for president and vice-president." But, under the national constitution, presidential electors and the president and vice-president are chosen at different elections, held at different times and places; so that, where the charge was betting on a state election for presidential electors, and the proof was of a bet that the state would vote for a particular presidential candidate, there was adjudged to be a fatal variance.' § 947. Secondly. The evidence: 995 Parol Writing. The result of a presidential election was adjudged to be provable by parol. For, among other reasons, said Thacher, J.: "Such a matter of great public interest is universally known throughont the land, and can, therefore, be proved or disproved with absolute certainty by parol proof." Probably, in most of the states, it is immaterial to the offense what the result is; for which reason there is no occasion either to allege or prove it. If the terms of the bet are in writing, the writing should be produced." 948. Time of bet.- Where, from the dates in the indictment, the bet appears to have occurred before the election was held, it is still no variance to prove a bet made afterward, before the result was known.7 § 949. Value. The value of the thing bet must, when necessarily alleged, be so far proved as to make the offense and its punishment appear." But it need not be proved, or proved as laid, where it is not an ingredient in the crime and the averment is surplusage.10 1S. v. Banfield, 22 Mo. 461. 2 Bellair v. S., 6 Blackf. 104. 3 Porter v. S., 5 Sneed, 358, 359. 4 Gamble v. S., 35 Miss. 222. 5 Williams v. S., 12 Sm. & M. 58, 63. And see, as to Indiana, Hizer v. S., 12 Ind. 330. Caldwell v. S., 63 Ind. 283; Frazee v. S., 58 Ind. 8. 7 Miller v. S., 33 Miss. 356, [69 Am. D. 351.] See ante, § 935. 8 Ante, § 945. 9 Crim. Pro., I, § 488b. 10 Com. v. McAtee, 8 Dana, 28. § 950. How chapter divided. We shall consider, I. The law of the offense; II. The procedure. I. THE LAW OF THE OFFense. § 951. General and historical.- Lotteries are a species of gaming. Formerly they were in our states permitted, and even established and licensed by law, as a means of raising money for worthy objects. But their evils were immense; both in the woes inflicted on the weak-minded and credulous, who were induced to buy chances in them, to be followed by bitter disappointments; and in their baneful effects on those termed "lucky," who drew the prizes. Later, under the influence of a healthier public sentiment, they are pretty generally forbidden. § 952. Meaning of "lottery."-" By statute 10 and 11 Will. 3, ch. 17," observes Blackstone, "all lotteries are declared to be public nuisances, and all grants, patents or licenses for the same to be contrary to law. But, as state lotteries have, for many years past, been found a ready mode of raising the supply, an act was made, 19 Geo. 3, ch. 21, to license and regulate the keepers of such lottery offices." Whence, and from an inspection of the statute books of the mother country, we learn that the term "lottery" has long been familiar to her laws. Yet we appear not to have derived from the English books any definings of it helpful in the interpretations of our statutes. So that, in the absence of adjudications of our own, our courts look, for its meaning, to the popular use. 1Thomas v. P., 59 Ill. 160; Bell v. S., 5 Sneed, 507, 509; [Ex parte Kameta (Oreg.), 60 Pac. R. 394.] 24 BL. Com. 168. Dunn v. P., 40 IIL 465; U. S. v. But by repeated de Olney, 1 Abb. (U. S.) 275, and other cisions they have to some extent given bounds to it; until, if not with absolute, yet with proximate, accuracy,— How defined.-A lottery may be defined to be any scheme whereby one, on paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, or nothing, as some formula of chance may determine.1 1 Consult and compare Holoman v. S.. 2 Tex. Ap. 610, [28 Am. R. 439;] Randle v. S., 42 Tex. 580; S. v. Randle, 41 Tex. 292; S. v. Lovell, 10 Vroom, 458, 463; Chavannah v. S., 49 Ala. 396; S. v. Clarke, 33 N. H. 329, [66 Am. D. 723;] Negley v. Devlin, 12 Abb. Pr. (N. S.) 210; Thomas v. P., 59 Ill. 160; Com. v. Manderfield, 1 Pa.. Leg. Gaz. R. 37; Com. v. Manderfield, 8 Phila. 457; Reg. v. Harris, 10 Cox, C. C. 352; France v. S., 6 Bax. 478; S. v. Bryant, 74 N. C. 207; U. S. v. Hornibrook, 2 Dill. 229; Buckalew v. S., 62 Ala. 334, [34 Am. R. 22;] Hull v. Ruggles, 56 N. Y. 424; Swain v. Bussell, 10 Ind. 438; Rolfe v. Delmar, 7 Rob. (N. Y.) 80; Dunn v. P., 40 Ill. 465; Almshouse v. American Art Union, 3 Seld. 228; P. v. American Art Union, 3 Seld. 240, 13 Barb. 577; P. v. Payne, 3 Denio, 88; S. v. Pinchback, 2 Mill, 128; Wooden v. Shotwell, 3 Zab. 465; Com. v. Chubb, 5 Rand. 715. See Com. v. Garland, 5 Rand. 652; [Cross v. P., 18 Colo. 321, 32 Pac. R. 821; Hudelson v. S., 94 Ind. 426, 48 Am. R. 171; U. S. v. Wallis, 58 Fed. R. 942; Yellowstone Kit v. S., 88 Ala. 196, 7 S. R. 338, 16 Am. St. R. 38, 7 L. R. A. 599.] In U. S. v. Olney, 1 Abb. (U. S.) 275, in an opinion by Deady, J., various definitions of the word "lottery" are collected, as follows: Worcester's Dictionary.-"A distribution of prizes and blanks by chance; a game of hazard, in which small sums are ventured for the chance of obtaining a larger value in money or other articles." Webster's Dictionary.—“A disposition of prizes by lot or chance." Bouvier's Law Dictionary.—“ A scheme for the distribution of prizes by chance." Anderson's Law Dictionary. Rees Cyclopædia.-"A kind of game of hazard, wherein several lots of merchandise are deposited in prizes for the benefit of the fortunate." American Cyclopædia.-"A sort of gaming contract, by which, for a valuable consideration, one may by favor of the lot obtain a prize of a value superior to the amount or value of that which he risks." Smith's Wealth of Nations.-"That the chance of gain is naturally overvalued, we may learn from the universal success of lotteries." And the learned judge explains: "All these authorities agree that, where there is a distribution of prizes something valuable - by chance or lot, this constitutes a lottery. But the definitions from Worcester and the American Cyclopædia are the most complete. From each of these it expressly appears that a valuable consideration must be given for the chance to draw the prize." Pages 278, 279. Again: "If persons already owning family plate, pictures, or other property not susceptible of division, or even equal division, choose to distribute by an appeal to lot what has thus come to them before they had any scheme of so distributing it, they are not within the definition of a lottery, nor liable to this special tax. They have not given a valuable consideration for the chance of obtaining something of much greater value-a prize." § 953. Chance to draw more than paid.-No one would ever patronize a lottery unless the scheme showed that in some possible contingency more might be drawn out than was paid in. So that the question whether this element is essential becomes unimportant, because it can never practically arise.' § 954. By whom lot cast.- Commonly the managers of the lottery work the scheme whereby the lot is determined. But a scheme worked by the ticket holders or by third persons would seem equally to be a lottery, though the question is perhaps not absolutely settled." 4 § 955. Blanks - Property. To constitute a lottery there need be no blanks; but there must be some property disposed of by lot." Page 281. For another collection of definitions, see Fleming v. Bills, 3 Oreg. 286. 1 Where the tickets were sold for a shilling, and every holder was to receive something which, it was con tended, was worth the shilling, but there were chances of prizes of greater value, M. Smith, J., ruled that the scheme was a lottery. "Whether," he said, "the full value of the shilling was or was not received by the subscribers, the case comes equally within the mischief against which the act prohibiting lotteries was directed, inasmuch as the subscribers were induced to part with their money in the hope of obtaining not only their alleged shilling's worth, but something of much greater value, the right to which was to be ascertained by chance." Reg. v. Harris, 10 Cox, C. C. 352. And see U. S. v. Olney, 1 Abb. (U. S.) 275; Wooden v. Shotwell, 3 Zab. 465, 4 Zab. 789; Seidenbender v. Charles, 4 S. & R. 151, [8 Am. D. 682.] In a Tennessee Case, Caruthers, J., said: "A lottery is a game of hazard, in which small sums are ventured for the chance of obtaining greater." Bell v. S., 5 Sneed, 507, 509. [And see Stoddart v. Sagar, [1895] 2 Q. B. 474, 15 R. 579; Kohn v. Koehler, 96 N. Y. 362, 48 Am. R. 628; S. v. Moren, 48 Minn. 555, 51 N. W. R. 618; McLanahan v. Mott, 73 Hun, 131, 25 N. Y. S. 892; Com. v. Wright, 137 Mass. 250, 50 Am. R. 306.] 2 For example, Marks v. S., 45 Ala. 36: Warren v. S., 46 Ala. 549; Thomas v. S., 59 Ill. 160; S. v. Shorts, 3 Vroom, 398; [P. v. Elliott, 74 Mich. 264, 41 N. W. R. 916, 16 Am. St. R. 640, 3 L. R. A. 403.] 3 Fleming v. Bills, 3 Oreg. 286; Dunn v. P., 40 Ill. 465; S. v. Clarke, 33 N. H. 329, [66 Am. D. 723;] Holoman v. S., 2 Tex. Ap. 610, [28 Am. R. 439.] See Buckalew v. S., 62 Ala. 334, [34 Am. R. 22; S. v. Mercantile Ass'n, 45 Kan. 351, 25 Pac. R. 984, 11 L. R. A. 430. As to "nickel-in-theslot" machine, see City of New Or leans v. Collins (La. An.), 27 S. R. 532; Loiseau v. S., 114 Ala. 34, 22 S. R. 138, 62 Am. St. R. 84; Prendergast v. S. (Tex. Cr. R.), 57 S. W. R. 850.] 4 Wooden v. Shotwell, 3 Zab. 465; Reg. v. Harris, 10 Cox, C. C. 352. 5 P. v. Payne, 3 Denio, 88. [See Long v. S., 73 Md. 527, 21 Atl. R. 683, 25 Am. St. R. 606, 12 L. R. A. 89; S v. Boneil, 42 La. An. 1110, 8 S. R. 298, 21 Am. St. R. 413, 10 L. R. A. 60.] Illustrations of schemes which have been held to be lotteries are the "American Art Union," a "gift sale" of books," a "prize concert," and "auction pools," "French pools" and "combination pools" upon a horse-race. Again, § 956. Right to buy chance values. It is a lottery where one sells cards in envelopes, the contents of which the purchaser does not know, except that each card contains a list of articles which he may buy for one dollar, and the values of the articles on the respective cards differ. "The element of chance lies," said Lawrence, J., "not in what the holder of the envelope may knowingly do with his card and dollar after he has purchased his envelope, but in the purchase of the envelope itself, which, it is represented to him by the advertisement, may contain a card or ticket that will give him the right to buy for one dollar an article worth hundreds of dollars, or may contain a card that will only give him the right to buy something so valueless as not to be worth buying at any price." So also Town lots. A scheme for disposing of town lots, whereby some are sold and others are reserved to be distributed by lot among the buyers of the former, the chance of getting a reserved lot being among the inducements to the purchase, is a lottery. Likewise 1 Almshouse V. American Art Union, 3 Seld. 228. Compare with P. v. American Art Union, 3 Seld. 240; New York v. American Art Union, 32 How. Pr. 341. For analogous cases, see Thomas v. P., 59 Ill. 160; Marks v. S., 45 Ala. 36, followed in Warren v. S., 46 Ala. 549. And see Boyd v. S., 61 Ala. 177. 2 S. v. Clarke, 33 N. H. 329, [66 Am. D. 723;] Bell v. S., 5 Sneed, 507, 509. 3 Com. v. Thacher, 97 Mass. 583. And see Negley v. Devlin, 12 Abb. Pr. (N. S.) 210. 4S. v. Lovell, 10 Vroom, 458, 463. [As to horse-racing, see P. v. Fallon, 152 N. Y. 12, 46 N. E. R. 296, 57 Am. St. R. 492, 37 L. R. A. 227; In re Dwyer, 35 N. Y. S. 884, 14 Misc. R. 204. For other devices, see Davenport v. City of Ottawa, 54 Kan. 711, 39 Pac. R. 708, 45 Am. St. R. 303; Reeves v. S., 105 Ala. 120, 17 S. R. 104; 5 Dunn v. P., 40 Ill. 465, 468; [S. v. Lumsden, 89 N. C. 572.] "U. S. v. Olney, 1 Abb. (U. S.) 275. "It matters not," said Deady, J., "even if the purchaser was to receive the full value of his money in any event. As a matter of fact the money was paid for the chance of the prize also, and would not have been paid without this inducement." Page 280. And see ante, § 953, note. [Further as to town-lot schemes, see Paulk v. Jasper Land Co., 116 Ala. 178, 22 S. R. 495; Jackson Steel Nail Co. v. Marks, 4 Ohio Cir. Ct. 343; Lander v. Peoria, etc. Society, 71 Ill. Ap. 475; Chancy Park Land Co. v. Hart, 104 Iowa, 592, 73 N. W. R. 1059; Lynch v. Rosenthal, 144 Ind. 86, 42 N. E. R. 1103, 55 |